Recent CSPA Decision Favors Aged-Out Children

A child who has turned 21 may still be considered younger than 21 years old under the Child Status Protection Act (CSPA). Being considered younger than 21 for immigration purposes significantly reduces the wait time to become a lawful permanent resident.

Locking a child’s age at younger than 21 occurs when a United States citizen parent petitions an unmarried child before he or she turns 21 but the child’s adjustment of status or admission as an immigrant takes place after reaching 21.

Another situation when a child’s age is frozen under CSPA is when a lawful permanent resident parent is the beneficiary of a visa petition or files a visa petition for his or her child under 21. The number of days between the filing of the petition and the approval is subtracted from the child’s age on the date that the priority date of the child or parent becomes current. If the difference is less than 21, the child benefits from the CSPA.

An additional requirement for CSPA purposes is that the child must have “sought to acquire” lawful permanent resident status within one year of the visa number availability. This is the date when the visa petition is approved and the priority date is current as indicated in the Department of State Visa Bulletin.

The phrase “sought to acquire” has been interpreted by the Department of Homeland Security (DHS) and the Department of State (DOS) narrowly. The DHS has stated that the phrase refers to the filing of an adjustment of status application.

The DOS has said that for purposes of consular processing it means the submission to the National Visa Center of the Form DS-230 Part I by the child or by the child’s parent or Form I-824 by the parent in cases where the child is following to join.

Many CSPA applications have been rejected or denied because of such strict interpretation.

In a recent unpublished decision by the Board of Immigration Appeals, the term “sought to acquire” was given a broad meaning.

In this case, Matter of Murillo, the visa petition of his father had a priority date of October 16, 1995 and was approved on August 8, 1996 when Murillo was 12 years old. A visa number became available on June 1, 2003 when he was 19 years old. However his attorney whom he retained to file his adjustment of status filed his application more than 20 months from the date when a visa number became available.

The DHS concluded that Murillo was not eligible for CSPA benefits because he did not file his adjustment application within a year from June 1, 2003. But the Immigration Judge ruled that he was eligible because the requirement of “sought to acquire” could be satisfied by circumstances short of filing the application. The hiring of the attorney to prepare the application satisfied this requirement.

The Board of Immigration Appeals agreed with the Immigration Judge. The Board said that the term “sought to acquire” was broad enough to include substantial steps (such as hiring an attorney who completed the form and obtaining a money order for the filing fee) toward the filing of the adjustment application within the required one-year period. To hold otherwise, the Board said, “would undermine the very purpose and intent of the statute which was to protect an alien ‘child’ from ‘aging out’ due to ‘no fault of her own’.”